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As wellness programs continue to increase in popularity as a means to keep health care costs under control, more employers are conducting health risk assessments to better understand their employees’ health risks. This is a logical first step—employers can’t know what health issues to focus on in their wellness program if they don’t have a firm understanding of the health of their employee population. However, employers who conduct risk assessments need to be aware how their process might be constrained by the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
Keeping It Voluntary
The ADA says that health- and disability-related inquiries and employee medical examinations must be completely voluntary unless they are specifically job-related and consistent with business necessity. The term “job-related and consistent with business necessity” means that employers can only ask for medical information if they reasonably believe that employees will be unable to perform an essential function of the job because of a medical condition, or will pose a direct threat (to themselves or others) because of the condition.
Most risk assessments make health- and disability-related inquiries, and since they typically are meant to assess the general health of an employee population in general, they are rarely job-related and consistent with business necessity. As such, under the ADA, most risk assessments would need to be voluntary.
Risk assessments not only inform employers of the biggest health risks facing their employees, but inform employees of the state of their own health. It’s no wonder that many employers want to do everything they can to encourage employees to participate in risk assessments. But to what extent can employers go by way of “encouragement”?
Consider the following example: XYZ Corp.’s annual health risk assessment includes medical inquiries that are not job-related and consistent with business necessity. The company declares filling out the assessment questionnaire is voluntary. However, the organization indicates that employees who do not participate will become ineligible for coverage under the company’s health plan.
Though an employee could technically refuse to participate in XYZ’s risk assessment, an informal Equal Employment Opportunity Commission (EEOC) discussion letter dated March 6, 2009, indicates that “requiring that all employees take a health risk assessment that includes disability-related inquiries and medical examinations as a prerequisite for obtaining health insurance coverage does not appear to be job-related and consistent with business necessity, and therefore would violate the ADA.” While this discussion letter is not a formal position taken by the EEOC, it does give employers an indication of how the commission might react to such a situation.
This letter goes on to say that disability-related inquiries and medical examinations arepermitted as part of a voluntary wellness program, but it clarifies that a voluntary wellness program exists when employees are neither required to participate nor are penalized for nonparticipation. Though the discussion letter identifies the loss of the opportunity to obtain health coverage through the employer’s plan as a penalty, it is not yet clear to what extent employers can provide incentives for participation before the loss of opportunity to receive the incentive would be considered a penalty.
The original version of the March 6, 2009, EEOC discussion letter indicated that an employer could reward employees for participating in a risk assessment as long as the reward was worth no more than 20 percent of the cost of employee-only health care coverage under the employer’s plan. This standard was meant to be consistent with regulations implementing the nondiscrimination provisions of the Health Insurance Portability and Accountability Act (HIPAA). However, this portion of the letter was later retracted, leaving employers with little guidance to determine the extent to which incentives could be offered in conjunction with risk assessments without being perceived as a penalty for an employee who chooses not to participate.
GINA Weighs In
GINA protects individuals from discrimination based on their genetic information, and Title II of GINA weighs in when it comes to administering risk assessments. Specifically, GINA addresses assessments that solicit genetic information, a term that includes an employee’s family medical history. If a risk assessment asks employees if they have any family members with cancer, heart disease, or diabetes, for example, it solicits genetic information.
Under GINA, risk assessments that request genetic information must be completely voluntary. GINA also dictates that no rewards can be provided for the completion of risk assessments that solicit genetic information. Accordingly, employers cannot impose any penalties for an employee’s failure to complete an assessment that solicits such information.
Like the ADA, GINA complicates matters for employers seeking to maximize risk assessment participation and wishing to collect information that will help them understand the greatest health risks facing their employee populations.
However, under GINA, rewards can still be offered for risk assessments that do not solicit genetic information from employees. This means that employers could potentially offer two separate assessment questionnaires: one that asks for genetic information but is completely voluntary, and another incentivized assessment that does not solicit genetic information. This would be acceptable under GINA.
As mentioned earlier, if the second risk assessment asks for medical information that is not job-related and consistent with business necessity, employers must still be careful to ensure that any rewards offered aren’t so substantial that the assessment is no longer considered voluntary.
Don’t Be Dissuaded
Figuring out how to get the best participation from your employees is a little tricky considering the provisions of the ADA and GINA. While the laws governing health risk assessments might seem complicated, they shouldn’t stop employers from relying on risk assessments as the foundation of their wellness program. By taking some time to understand the role that the ADA and GINA play, employers can rest assured that they are collecting employees’ information legally. With that peace of mind, they can move on to designing a wellness program that truly addresses the biggest health threats facing their employees. After all, it’s that kind of customized program that will have the biggest return on investment in the long run.
Katie Loehrke is associate editor at J.J. Keller & Associates Inc., a business information provider that helps employers deal with the complex and constantly evolving regulations that affect their operations.
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